Delhi High Court
National Insurance Co Ltd vs Manoj Kumar & Ors. on 25 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 25, 2018
+ MAC.APP. 159/2018
+ MAC.APP. 160/2018
+ MAC.APP. 161/2018
NATIONAL INSURANCE CO LTD .....Appellant
Through: Ms. Shantha Devi Raman and
Mr. Arihant Jain, Advocates
versus
MANOJ KUMAR & ORS.
MANOJ KUMAR & ANR. .....Respondents
Through: Mr. Jitender Kamra, Advocate
+ MAC.APP. 859/2018
MANOJ KUMAR & ORS. .....Appellant
Through: Mr. Jitender Kamra, Advocate
versus
JAGDISH PARIHAR & ANR. (NATIONAL INSURANCE CO
LTD) .....Respondents
Through: Ms. Shantha Devi Raman and
Mr. Arihant Jain, Advocates
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. The above captioned four appeals arise out of impugned Award of
7th October, 2017, vide which the Motor Accident Claims Tribunal
(henceforth referred to as "the Tribunal") has awarded compensation of
₹51,72,000/-(rounded of) with interest @ 9% p.a. to legal heirs of
Surendra, Head Constable in Delhi Police, aged 45½ years who had died
in a vehicular accident which took place on 30th April, 2013.
2. In this unfortunate accident in question, a Housewife- Nirmala, w/o
Surendra, aged 40 years and 3 months had also suffered fatal injuries and
the Tribunal vide common impugned Award of 7th October, 2017, has
granted compensation of ₹15,30,000/- (rounded of) with interest @ 9%
p.a. to her legal heirs, which is under challenge in the above appeals. A
student-Manoj, son of deceased -Surendra and Nirmala was also injured
in this accident and the Tribunal has granted compensation of ₹30,000/-
(rounded of) with interest @ 9% p.a. to him.
3. In the above captioned appeals, National Insurance Company
Limited (henceforth referred to as the „Insurer‟) disputes the involvement
of the insured tempo in the accident in question and seeks exoneration
from paying the awarded compensation, whereas legal heirs of deceased-
Nirmala seek enhancement in the compensation awarded by the Tribunal.
4. Since these four appeals arise out of one vehicular accident,
therefore, with the consent of learned counsel for the parties, these
appeals have been heard together and are being decided by this common
judgment.
5. The factual background of this case, as noticed in the impugned
Award, is as under:-
"Brief facts of the vehicular accident as averred
in the Claim Petitions and DAR are that on 30.04.2013 at
about 04.15 am at Rohtak-Delhi Road before the red light
at Ghevra Mor, Mundka, deceased Sh. Surendra Singh @
Surender Singh was driving the Ritz Car No. DL-5C-J-
0528 in which his wife Smt. Nirmala Devi and son Sh.
Manoj Kumar were also travelling, when the car was hit
by the speeding offending vehicle, while overtaking.
Consequently, Sh. Surendra Singh @ Surender Singh and
his wife Smt. Nirmala Devi suffered fatal injuries and Sh.
Manoj Kumar suffered injuries. Allegedly, the offending
vehicle was driven in a rash and negligent manner by Sh.
Jagdish Parihar (Respondent No. 1), who is also the
owner of the vehicle, which was insured with National
Insurance Company Limited (Respondent No. 2)"
6. To render the impugned Award, the Tribunal has relied upon
evidence of Injured-Manoj, who has also deposed on behalf of legal heirs
of deceased and other evidence on record. The breakup of compensation
awarded by the Tribunal to legal heirs of deceased-Surendra is as under:-
1 Loss of Financial Dependency `49,21,420/-
2 Loss of Love & Affection `1,50,000/-
3 Funeral Expenses `50,000/-
4 Loss of Estate `50,000/-
Total `51,71,420/-
(rounded off to
`51,72,000/-)
7. The breakup of compensation awarded by the Tribunal to legal
heirs of deceased -Nirmala is as under:-
1 Loss of dependency on account of `12,79,200/-
gratuitous services
2 Loss of Love & Affection `1,50,000/-
3 Funeral Expenses `50,000/-
4 Loss of Estate `50,000/-
Total `15,29,200/-
(rounded off to
`15,30,000/-)
8. The breakup of compensation awarded by the Tribunal to Injured-
Manoj is as under:-
1. Expenses relating to medicines `14,755/-
2. Pain, Sufferings & Trauma `15,000/-
Total `29,755/-
(rounded off to
`30,000/-
9. The challenge to impugned Award by counsel for Insurer is on the
ground that insured tempo was not involved in the accident in question. It
is submitted that salary of the deceased- Surendra has been assessed
without deducting the income tax, transport allowance, washing
allowance, etc.. It is submitted that the 'non-pecuniary damages‟ granted
to the legal heirs of the deceased are required to be brought in tune with
Supreme Court's Constitution Bench decision in National Insurance
Company Ltd. Vs. Pranay Sethi & Ors. (2017) 16 SCC 680. It is further
submitted by Insurer's counsel that deceased-Nirmala‟s notional income
has been erroneously assessed by the Tribunal on minimum wages
payable to non-matriculate and addition of 25% towards „future
prospects‟ made by the Tribunal is unjustified and compensation granted
under the 'non-pecuniary damages‟ to her legal heirs is on the higher
side.
10. On the contrary, learned counsel for the legal heirs of both the
deceased and the injured refutes the aforesaid stand taken on behalf of
Insurer and submits that the quantum of compensation granted to legal
heirs of deceased-Nirmala is inadequate. Enhancement of compensation
is sought on the ground that in view of Supreme Court's decision in
Pranay Sethi (Supra), addition of 40% towards „future prospects‟ has to
be made.
11. Upon hearing and on perusal of impugned Award, evidence on
record and the decision cited, I find that registration number of the
insured tempo in question does not find mention in the PCR form and the
FIR of this case, but in the charge-sheet filed in the criminal case, details
of the insured vehicle are mentioned.
12. During the course of hearing, learned counsel for Insurer had
drawn the attention of this Court to evidence of Investigating Officer,
charge-sheet filed in the criminal case and evidence of Injured-Manoj to
assert that the insured vehicle was not involved in this accident. On
scrutiny of the evidence of Injured-Manoj, I find that there is no basis to
conclude that the insured vehicle was not involved in this accident. It is
so said, because there is no cross-examination of Injured-Manoj as to how
and when he came to know about the particulars of the insured vehicle.
In any case, the level of scrutiny in cases like instant one and the criminal
case cannot be equated. Although driver of the insured vehicle has
deposed that he was not driving the insured vehicle negligently and has
tried to impute the negligence on the car driver who had died in this
accident, but I find that the evidence of Injured-Manoj as compared to the
evidence of the driver of the insured vehicle is worthy of reliance.
Although there was no fresh damage to the insured vehicle, but
mechanical inspection of insured vehicle was done after few months of
this accident and so, on this ground, it cannot be said that insured vehicle
was not involved in the accident in question.
13. Pertinently, the Detail Accident Report (DAR) gives the particulars
of the insured vehicle and the name of its driver. Upon taking an overall
view of the entire evidence on record, I find that there is no basis to
discard the evidence of Injured-Manoj, who had witnessed this accident.
So far as salary of deceased- Surendra is concerned, I find that the
Tribunal has assessed the income of deceased- Surendra on the basis of
the Income Tax Returns filed and so, there is no basis to take a different
view then the one taken by the Tribunal on this aspect.
14. Compensation granted by the Tribunal under the „non pecuniary
heads‟ to legal heirs of deceased- Surendra needs to be brought in tune
with Supreme Court's decision in Pranay Sethi (Supra). Accordingly,
compensation of ₹1,50,000/- granted under the head of „loss of love and
affection‟ is disallowed and the „funeral expenses‟ and compensation
under the head of „loss of estate‟ are reduced from ₹50,000/- each to
₹15,000/- each.
15. The compensation payable to legal heirs of deceased- Surendra is
re-assessed as under:-
1 Loss of income `49,21,420/-
2 Loss of estate `15,000/-
4 Funeral expenses `15,000/-
Total `49,51,420/-
16. The compensation granted by the Tribunal to legal heirs of
deceased-Nirmala is on the basis on minimum wages payable to non
matriculate. In view of Supreme Court's decision in Jitendra
Khimshankar Trivedi & Ors. vs. Kasam Daud Kumbhar & Ors. (2015) 4
SCC 237, the compensation payable to housewife has to be assessed on
notional income of ₹3,000/- per month. Since deceased-Nirmala was
aged few months more than 40 years on the day of the accident therefore,
in view of Supreme Court's Pranay Sethi (Supra), addition of 25%
towards „future prospects‟ has to be made. The Tribunal has rightly
deducted one-third towards „personal expenses‟ of the deceased but has
erred in applying multiplier of 15 as deceased Nirmala was aged more
than 40 years. In view of Supreme Court's decision in Sarla Verma
(Smt.) & Ors. vs. Transport Corporation & Anr. (2009) 6 SCC 121, the
applicable multiplier is of 14. Accordingly, in case of deceased- Nirmala,
the "loss of dependency" is re-assessed as under:-
₹3,000/- per month X 12 X 125/100 X 2/3 X 14= ₹4,20,000/-
17. In the considered opinion of this Court, no case for enhancement of
compensation to legal heirs of deceased-Nirmala is made out. In view of
Supreme Court's decision in Pranay Sethi (Supra) the compensation of
₹1,50,000/- under the head of „loss of love and affection‟ granted to legal
heirs of deceased-Nirmala is disallowed and the „funeral expenses‟ as
well as compensation under the head of „loss of estate‟ is reduced from
₹50,000/- each to ₹15,000/- each. Accordingly, the compensation
payable to legal heirs of deceased-Nirmala is re-assessed as under:-
1 Loss of dependency on `4,20,000/-
account of gratuitous
services
2 Funeral expenses `15,000/-
4 Loss of Estate `15,000/-
Total `4,50,000/-
18. The compensation awarded to Injured-Manoj is found to be just
and reasonable and no case for its reduction is made out.
19. Consequentially, the compensation of ₹51,72,000/-(rounded of)
awarded by the Tribunal to legal heirs of deceased- Surendra is reduced
to ₹49,51,420/-. In case of deceased-Nirmala, the compensation payable
legal heirs of deceased-Nirmala stands reduced from `15,30,000/-
(rounded of) to `4,50,000/-. The modified compensation shall carry
interest @ 9% per annum and it be released forthwith to the legal heirs of
deceased- Surendra and deceased-Nirmala and Injured-Manoj in the
manner, as indicated in the impugned Award. Statutory deposit alongwith
excess deposit, be refunded to the Insurer.
20. With aforesaid modification in the impugned Award, the above
captioned four appeals are accordingly disposed of.
(SUNIL GAUR)
JUDGE
SEPTEMBER 25, 2018
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